Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016 (Western Australia)

These regulations allow the Department to require prison officers and contracted officers to undergo alcohol and drug testing while on duty or when recalled. Tests may be random, targeted or mandated; confirmed positives can lead to welfare referral, managerial steps, disciplinary or removal action, or revocation of high‑level permits.

The chief executive officer and approved officers decide who and what to test, and a worker who asks for independent retesting pays for it (reg 36(2)). Officers must provide breath, urine, oral fluid or blood on demand (regs 15, 21, 39–41); critical‑incident rules permit recall from off‑duty (regs 28–31).

These regulations establish a statutory regime for alcohol and drug testing of prison officers and contract prison officers in Western Australia. They set out who may be tested, the circumstances in which testing may be required, the types of samples and tests that may be used, the persons and accreditation required to collect and analyse samples, the administrative forms and reporting steps, and the workplace consequences and disciplinary pathways that may follow adverse results.

Mechanically, the regulations do the following (select cross‑references in parentheses): designate and require the publication of approved persons, sample collectors and analysts (regs 5-8); permit random, targeted and mandated testing of officers at work or when recalled to duty (regs 9-11, 27-31); authorise preliminary tests (breath, oral fluid, urine) and confirmatory analysis (breath analysing equipment, laboratory analysis of blood/urine/oral fluid) (Parts 2 and 3, regs 15-26); prescribe identity verification, chain‑of‑custody forms and medical collection procedures (regs 16, 19, 20, Schedule 1 Forms 1-2); allow the chief executive officer to declare targeted drugs and masking agents and to approve collection standards, protocols and equipment (regs 12-14); specify the evidential character of presumptive and confirmed test results and special quantitative thresholds for alcohol and certain drug tests (reg 3 definitions, regs 34-35); require opportunity to explain a presumptive positive drug result, but render that explanation inadmissible in criminal proceedings while allowing disciplinary use (reg 24); and create workplace‑facing sanctions (referral to welfare, managerial intervention, disciplinary or removal action under the Prisons Act 1981 Part X, permit revocation for contract officers) rather than creating new criminal offences within the regulations themselves (regs 34-38, 42).

The regime places operational discretion in the chief executive officer and in approved persons who may require tests, recall officers to duty, and decide which testing processes and collection protocols are used (regs 6-8, 11, 14). It also establishes procedural safeguards and limits , for example, tests may only be carried out when an officer is on duty or recalled to duty (reg 4(2)), and a selected officer cannot be tested at their place of residence when recalled (regs 28(3), 31(2)). Administrative record forms and publication obligations are prescribed (regs 5, 18; Schedule 1). The regulations specify who bears the cost of independent retesting , the officer, if they request it (reg 36(2)). Finally, the regulations interact explicitly with other statutes (Prisons Act 1981, Public Sector Management Act 1994, Misuse of Drugs Act 1981, Medicines and Poisons Act 2014) by pointing to removal, disciplinary and poison scheduling mechanisms as the routes for consequence and classification (regs 3, 37-38).

The regulations are organised around a set of operational and legal concepts that define the testing regime. Key definitional concepts are central to how the mechanics work in practice.

Selected prison officer: the person who may be required to undergo testing is defined by reference to "prison officer" and "contract prison officer" (reg 3). The latter includes contract workers authorised under Prisons Act s 15I and those with permits for high‑level security work under s 15P (reg 3). Thus the scope reaches permanent staff and some categories of contracted workers.

Presumptive positive and confirmed adverse results: the rules distinguish a preliminary/presumptive screening outcome from a confirmed adverse test result requiring laboratory confirmation. A presumptive positive for alcohol is defined as a preliminary breath test indicating likely blood alcohol concentration of 0.02 g/100 ml or higher; a confirmed adverse test result for alcohol is an analysis by breath analysing equipment showing any presence of alcohol for firearm‑ or vehicle‑involved officers, and 0.02 g/100 ml or more for other officers (reg 3 definitions). For drugs, a presumptive positive arises from a preliminary analysis of oral fluid, urine or blood, and a confirmed adverse test result follows laboratory analysis showing presence or evidence of ingestion (reg 3 definitions, regs 24-26, 35).

Testing categories and triggers: testing may be random (reg 9), targeted (reg 10) where there is "credible information, intelligence or suspicion", or mandated (reg 11) at the written direction of the chief executive officer in specified circumstances, which include critical incidents, high‑risk business areas, weapons training, safety/credibility reasons and prior confirmed adverse results (reg 11(2)). Critical incident is precisely defined and includes death, serious injury, discharge of a firearm, or incidents involving custody or driving by an officer where connected to their exercise of authority (reg 3).

Persons and accreditation: the chief executive officer appoints approved persons who may require testing (reg 6), approved sample collectors who have undergone training in approved collection standards (reg 7), and approved analysts accredited under NATA or certified by the Chemistry Centre WA (reg 8). Breath analysing equipment must be of a type "approved by the chief executive officer" (reg 3 definition), and collection processes and equipment may be approved or specified by the chief executive officer (reg 14).

Procedural safeguards and evidential rules: identity verification is required via original ID (drivers licence, passport, departmental photo ID or other CEO‑approved photo ID) at the time of sampling (regs 16, 22). Officers are given an opportunity to explain a presumptive positive drug result before confirmatory testing, with the explanation inadmissible in criminal proceedings but usable for disciplinary purposes if false or misleading (reg 24(1)-(3)). Two or more invalid samples without medical justification may be taken as a presumptive positive (regs 34(2), 35(2)). Independent testing is available (reg 36) but at the requesting officer's expense (reg 36(2)).

Primary legal subjects: the regulations apply directly to prison officers and contract prison officers as defined in reg 3 and regulation 4(1). Contract prison officers include contract workers authorised under Prisons Act s 15I and those with permits for high‑level security work under s 15P (reg 3). The regulations apply only when the officer is on duty or recalled to duty for testing (reg 4(2)); testing when recalled cannot take place at the officer’s place of residence in specified recall provisions (regs 28(3), 31(2)).

Operational decision‑makers: the chief executive officer of the Department has multiple powers to decide operational detail , to publish and approve persons (reg 5), to specify approved persons, sample collectors and analysts (regs 6-8), to declare targeted drugs and masking agents (regs 12-13), and to approve collection standards, protocols and equipment (reg 14). Approved persons, once specified, have the operational authority to select officers for testing under random, targeted or mandated categories (regs 9-11), to require identity confirmation (regs 16, 22), to require attendance, to recall officers to duty (regs 27-31), and to direct collection steps such as requiring blood/urine if breath cannot be provided (regs 17, 19, 20).

Medical and laboratory actors: medical practitioners, nurses, nurse practitioners and phlebotomists are designated as persons authorised to collect blood (regs 21(4), 19(1), 20(1), 23(1)). Analysts and drugs analysts must be NATA‑accredited in relevant fields or certified by the Chemistry Centre WA as competent (reg 3 definitions, reg 8). Approved sample collectors perform urine and oral fluid collections subject to approved training and protocols (reg 7).

Employment‑administrative actors: supervisors, the officer in charge, approved persons, the Department’s employee welfare unit, and managers who might implement managerial interventions or commence removal or disciplinary processes under Prisons Act Part X or the Public Sector Management Act 1994 Part 5 are all affected (regs 32, 37-38).

Third‑party implications: contractors who supply testing equipment, accredited laboratories and training providers for sample collectors and analysts are implicated by the chief executive’s powers to approve equipment, protocols and standards (reg 14). The regulations require publication of targeted drugs and masking agents on the Department’s publicly accessible website (regs 12-13), which affects what officers and external advisors must monitor. Contract prison officers with s 15P permits may have their permits revoked under section 15U of the Prisons Act if they do not comply (reg 42(2)).

The regulations impose a set of operational duties on selected prison officers and confer limited procedural rights. They also place administrative duties on the chief executive officer and approved persons.

Duties on officers

Submit to testing when required: A selected prison officer must provide breath, oral fluid, urine or blood samples when requested by an approved person (regs 15(1), 21(1), 39(1)-(4)). This duty extends to providing a sample of breath into breath‑analysing equipment where required for confirmatory analysis (reg 17(2)).
Confirm identity: The officer must produce original identification at the time of sampling , driver’s licence, passport, Departmental photo ID or CEO‑approved photo ID (regs 16(1), 22(1)). Copies, identification by colleagues, or documents without photos are expressly insufficient (regs 16(2), 22(2)).
Avoidance and tampering prohibitions: Officers must not refuse tests, avoid compliance by ceasing duty to escape testing absent urgent medical circumstances, provide two or more invalid samples without medical explanation, unnecessarily delay procedures after a critical incident, or tamper with testing processes or possess/take masking agents without lawful reason (regs 39-41). Two or more invalid samples without a written medical explanation may be taken as a presumptive positive (regs 34(2), 35(2)).
Remain on duty or be recalled: Officers may be required to remain on duty until testing is completed if involved in critical incidents or if selected for testing as part of workplace procedures (regs 27, 30-31). Recall to duty for testing is authorised in specific circumstances (regs 28-29, 31).

Rights and procedural protections for officers

Opportunity to explain a presumptive positive for drugs: Before confirmatory analysis, an officer must be given an opportunity to explain a presumptive positive (reg 24(1)). Failure to provide an explanation allows an approved person to draw adverse inferences (reg 24(2)).
Evidentiary safeguard for criminal proceedings: An explanation provided under reg 24 is inadmissible in criminal proceedings but can be used for disciplinary purposes if false or misleading (reg 24(3)).
Right to a portion of sample for independent testing: An officer who returns a confirmed adverse test (based on non‑breath samples) or a presumptive positive for drugs may request a sample portion for independent testing; the officer bears the cost of that independent testing (reg 36(1)-(2)).

The regulations do not prescribe criminal penalties or fixed monetary fines for non‑compliance. Enforcement and penalties are implemented through workplace and administrative mechanisms that leverage existing disciplinary and removal provisions in other statutes, and through denial or revocation of permits for contract officers.

Nature of offences in the instrument

Specific prohibited conduct is identified in Part 7: refusal to comply with testing requirements (reg 39), avoidance of compliance by ceasing duty or providing invalid samples without medical explanation or delaying procedures (reg 40), and tampering or possession/use of masking agents without lawful reason (reg 41). These are framed as breaches of duty rather than freestanding criminal offences within the regulations.

Administrative sanctions and enforcement routes

For prison officers, non‑compliance is a breach of duty and "may raise a doubt as to a prison officer’s suitability to continue as a prison officer" under Prisons Act Part X, or "may result in disciplinary action" under the Public Sector Management Act 1994 Part 5, where applicable (reg 42(1)). These statutory cross‑references indicate that enforcement relies on pre‑existing processes for removal and discipline.
For contract prison officers with permits for high‑level security work under s 15P of the Prisons Act, non‑compliance may lead to revocation of the permit under section 15U (reg 42(2)). The chief executive officer also has explicit power to revoke such permits following adverse drug test results (regs 37-38(1)(d), 38(2)(d)).
Following confirmed adverse test results, the chief executive officer may take specific actions including referral to the employee welfare unit, managerial interventions, initiation of removal or disciplinary proceedings, and permit revocation (regs 37-38). For certain drugs listed under the Misuse of Drugs Act 1981 Schedules or specified Schedules under the Medicines and Poisons Act 2014, the chief executive officer may accept resignation or proceed with removal action (reg 38(2)).

Operational enforcement mechanisms

Operationally, enforcement includes requiring officers to remain on duty until testing is complete (regs 27, 30) and recalling off‑duty officers to submit to testing in prescribed circumstances (regs 28-29, 31). These powers affect working time and duties.
The chief executive officer and approved persons control selection for random, targeted or mandated testing (regs 9-11), and also oversee approved sample collectors and analysts (regs 6-8, 14). These operational controls enable enforcement of compliance through workplace procedures.

The regulations are explicitly framed as subordinate to and interoperable with several existing statutes and accreditation standards. They embed cross‑references and implement mechanisms that hinge on other legislative frameworks and recognised accreditation bodies.

Prisons Act 1981

The regulations are made under the Prisons Act 1981 (title and Schedule references). They specifically refer to Part X of the Prisons Act as the statutory route for removal action against a prison officer (regs 37(1)(c), 38(1)(c), 42(1)). They also incorporate contract prisoner definitions derived from the Act (reg 3, referencing s 15I and s 15P for contract worker authorisation and permits).

Public Sector Management Act 1994

Disciplinary processes for prison officers may proceed under the Public Sector Management Act 1994 Part 5 where applicable (regs 37(1)(c), 37(1)(c) and 42(1)(b)). The regulations do not reproduce disciplinary procedures; they trigger the application of that statute's disciplinary apparatus.

Misuse of Drugs Act 1981 and Medicines and Poisons Act 2014

The definition of targeted drug includes drugs to which the Misuse of Drugs Act 1981 applies and particular Schedule categories in the Medicines and Poisons Act 2014 (reg 3 'targeted drug' definition). Consequences for confirmed adverse results depend on these classifications: for example, if a confirmed drug result is a Schedule I or II drug under the Misuse of Drugs Act, or a Schedule 8/9 poison under the Medicines and Poisons Act, the chief executive officer may accept resignation or initiate removal action (reg 38(2)). Masking agents are also a defined concept that the chief executive officer can declare under reg 13, and possession/use of masking agents is prohibited under reg 41.

National Association of Testing Authorities (NATA) and Chemistry Centre (WA)

Analysts must be accredited under NATA in relevant fields or certified by the Chief Executive Officer of the Chemistry Centre (reg 3 definitions, reg 8). The regulations thus rely on national accreditation standards to establish technical competence and chain‑of‑custody reliability.

Health Practitioner Regulation National Law (WA)

Definitions for nurse and nurse practitioner are linked to registration under the Health Practitioner Regulation National Law (Western Australia), integrating regulated health practitioner status for those authorised to collect blood or provide medical samples (reg 3 definitions, regs 19-20, 21(4), 23(1)).

The compilation notes appended to the regulation text identify the origin and subsequent amendments of these regulations. The history recorded in the source is short and specific.

Original instrument and commencement

Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016 were published 18 March 2016 and came into force (regs 1-2): regs 1 and 2 commenced on the day of Gazettal, 18 March 2016; the rest of the regulations commenced the following day, 19 March 2016 (Compilation table).

Amendments recorded in the compilation table

Corrective Services Regulations Amendment (Poisons) Regulations 2016 Pt. 2, Gazette 17 January 2017 p. 407-409, commenced 30 January 2017 (see compilation table notes). The 2017 amendment is recorded in the margins of the definitions as having amended reg 3 (Gazette citation at the end of reg 3).
Corrective Services Regulations Amendment Regulations 2018 Pt. 2, Gazette 13 November 2018 p. 4433-4435, commenced 1 December 2018 (see compilation table).

Amendment detail visible in the text

The definition of "targeted drug" and the inclusion of specific Schedules from the Medicines and Poisons Act 2014 (Schedules 2-4 and later adjustments) indicate statutory updates that align the regulations with the Medicines and Poisons Act classification scheme; a bracketed note after reg 3 states the regulation was amended in Gazette 17 Jan 2017 p. 407 and 13 Nov 2018 p. 4434, confirming those amendment events. Regulation 38 also includes a bracketed note stating that reg 38 was amended in Gazette 17 Jan 2017 p. 408, indicating changes to consequences where particular drugs are involved.

Scope of amendments in the source

The compilation does not list a broader amendment history beyond the 2017 and 2018 items. The compilation confirms the regulations as consolidated with those amendments included. The Schedule and defined terms list indicates the locations of definitions and the regulations as compiled.

What is not in the compilation table

The compilation table does not contain textual detail of each amendment; it provides citations and commencement dates. The source does not include an explanatory memorandum or second‑reading speech text within this compilation, nor does it provide an administrative record of subsequent policy decisions or internal departmental directives that implement the changes.

The supplied regulation text and compilation notes contain no judicial decisions, litigation summaries or case law references. The instrument itself does not list or cite cases, and the compilation table provides only making and amendment dates. Therefore, the source contains no recorded litigation history.

Areas where litigation might arise, based on the text

The regulations give the chief executive officer and approved persons wide operational discretion (specifying approved persons and protocols, declaring targeted drugs and masking agents, deciding when testing is "mandated" and when an individual is a subject of targeted testing) (regs 6, 11-14). Discretionary administrative acts of this type often give rise to judicial review claims in other contexts; the regulations do not set out an internal appeal process for many of these decisions, so legal challenges, if any, would likely proceed via administrative law channels external to the instrument. The source does not say this has occurred.
Procedural issues that could be litigious include identity verification disputes (regs 16, 22), the treatment of invalid samples as presumptive positives where two invalids occur without a written medical explanation (regs 34(2), 35(2)), and the lawfulness of recalls to duty or requiring an officer to remain on duty beyond their shift (regs 27-31). The regulations limit testing at a place of residence in certain recall provisions (regs 28(3), 31(2)), which is a procedural constraint that might feature in dispute scenarios.
Evidentiary and privacy considerations could also be grounds for challenge: the regulations permit use of explanations of presumptive positives for disciplinary purposes but not in criminal proceedings (reg 24(3)). How this intersects with rights in criminal proceedings or privacy infingements could be a point of contest, although the regulation itself preserves criminal evidentiary protections.

What the source provides for contesting results

The regulations permit independent testing (reg 36) but place the financial cost of that testing on the officer (reg 36(2)). This procedural right may affect the practical availability of immediate legal challenges to laboratory results. The regulations also prescribe specific forms and chain‑of‑custody steps (Schedule 1 Forms) which create administrative records that would be material in any contest.

Absence of litigation history in the regulation text

This section flags specific provisions and practical pitfalls in the regulations that can have operational or legal consequences if not recognised.

On‑duty/recall limitation

The regulations permit testing only where an officer is on duty or is recalled to duty for that purpose (reg 4(2)). Testing conducted when an officer is off duty and not properly recalled would fall outside the regulation. However, recall powers exist (regs 28-31) and have limits: a selected officer cannot be tested at their place of residence when recalled for drug testing or under the Division 2 recall (regs 28(3), 31(2)). Teams implementing testing must ensure recalls comply with these spatial limits.

Different alcohol thresholds by role

The definition of "confirmed adverse test result for alcohol" differentiates between officers whose duties involve firearms or driving and other officers: for firearm/vehicle duties, any presence of alcohol is a confirmed adverse result; for others the threshold is 0.02 g per 100 ml of blood or more (reg 3 definition). Policies that treat thresholds uniformly can therefore misclassify results.

Two invalid samples treated as presumptive positive

Providing two or more invalid samples without a written medical explanation leads to being "taken to return a presumptive positive" for alcohol (reg 34(2)) and drugs (reg 35(2)). That procedural rule can turn what might be an innocuous inability to provide a valid sample into an adverse administrative starting point if no medical explanation is supplied. Collection teams must record invalid sample reasons and secure medical explanations promptly.

Identity requirements are strict

Identity confirmation requires original ID (driver’s licence, passport, Departmental photo ID or CEO‑approved photo ID) and explicitly forbids identification by another officer, copies, or documents without photos (regs 16(1)-(2), 22(1)-(2)). Failure to adhere to this can create procedural challenges to the validity of the test.

Opportunity to explain is limited, and use of explanations is bifurcated

An officer must be given an opportunity to explain a presumptive positive for drugs before confirmatory testing (reg 24(1)). While that explanation is inadmissible in criminal proceedings, it can be used for disciplinary action if false or misleading (reg 24(3)). Officers should be advised of this distinction; giving an explanation carries disciplinary risk even if it cannot be used in criminal court.

For departments and employers

Establish clear written policies aligned with the regulations. The chief executive officer has specific powers to approve persons, collectors, analysts, collection protocols and equipment (regs 5-8, 14). Put in place formal appointment processes for approved persons, sample collectors and analysts, document training standards for sample collectors, and obtain NATA accreditation or Chemistry Centre WA certification for analysts as required (reg 8; reg 3 definitions).
Publish required lists and declarations. The chief executive officer must publish the names and relevant details of approved persons/sample collectors/analysts on the Departmental intranet (reg 5) and targeted drug and masking agent declarations are effective only when published on the publicly accessible Departmental website (regs 12-13). Maintain an online, date‑stamped record of these publications and any amendments.
Adopt and publicise collection standards and chain‑of‑custody procedures. Use the chief executive officer’s power to approve standards and collection protocols (reg 14) and ensure Schedule 1 Form 1 (medical request) and Form 2 (collection certificate) are used consistently to create documentary evidence for each sampling event (regs 19(2), 21(5)-(6), Schedule 1). Ensure sealed sample containers and kit serial numbers are recorded as required by Form 2.
Train supervisors and approved persons in selection grounds. Random, targeted and mandated testing have different thresholds and triggers (regs 9-11). Provide guidance on what constitutes "credible information, intelligence or suspicion" for targeted testing (reg 10), and record decision rationales when invoking mandated testing criteria (reg 11), particularly for critical incident testing.
Implement recall and remain‑on‑duty protocols that respect limits. The regulations permit recall to duty and require officers to remain on duty until testing is completed under many circumstances (regs 27-31). However, recalls cannot require testing at an officer’s residence in specified provisions (regs 28(3), 31(2)). Draft operational procedures for recalls, including transport, security, and timing, and ensure officers are advised of their obligations and rights.
Record procedures for medical incapacity and invalid samples. Where officers cannot provide breath/oral/urine samples, establish pathways to obtain medical sampling using Schedule 1 Form 1, and maintain arrangements with qualified medical practitioners, nurses, nurse practitioners or phlebotomists (regs 19(1)-(3), 20(1)-(2), 21(4), 23(1)-(2)). Document how to obtain and file written medical explanations for invalid samples (regs 34(2), 35(2)).

CrestWestern Australia

Prisons Act 1981

Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016

Western Australia

Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016

Contents

Part 1 — Preliminary

Citation 1
Commencement 1
Terms used 1
Application of these regulations 5
Publication of approved persons 5
Approved persons 6
Approved sample collectors 6
Approved analysts 6
When testing may be carried out: random 7
When testing may be carried out: targeted 7
When testing may be carried out: mandated 7
Chief executive officer may declare drugs or substances to be targeted drugs 8
Chief executive officer may declare substances to be masking agents 9
Chief executive officer may approve collection procedures for alcohol and drug testing 9

Part 2 — Testing for alcohol

Requirement to submit sample of breath for preliminary analysis 10
Requirement to confirm identity 10
Requirement to submit further sample of breath 11
Breath analysis form to be completed 11
Requirement to submit sample of urine or blood under certain circumstances 12
Incapacity to provide sample 12

Part 3 — Testing for drugs

Requirement to submit sample for drug testing 13
Requirement to confirm identity 13
Incapacity to provide sample 14
Opportunity to explain a presumptive positive test result for drugs 14
Requirement to submit further sample for drug testing 15
Drug analyst to report result to chief executive officer 15

Part 4 — Recall to, and remaining on, duty

Division 1 — Critical incident

Remain on duty: alcohol and drug testing 16
Recall to duty: drug testing 16
Recall to duty: alcohol testing 16

Division 2 — Other testing

Remain on duty: alcohol and drug testing 17
Recall to duty: drug testing 17

Part 5 — Self reporting

Involuntary or accidental alcohol consumption 19
Involuntary or accidental drug ingestion 19

Part 6 — Adverse test results

Adverse testing outcome: alcohol 20
Adverse testing outcome: drugs 21
Independent testing 21
Consequences of an adverse testing outcome: alcohol 21
Consequences of an adverse testing outcome: drugs 22

Part 7 — Other offences

Refusal 24
Avoidance 24
Tampering 25
Sanction for offences 25

Schedule 1 — Forms

Notes

Compilation table 30

Defined terms

Prisons Act 1981

Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016

Part 1 — Preliminary

1. Citation

	These regulations are the *Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016*.

2. Commencement

These regulations come into operation as follows —

(a) regulations 1 and 2 — on the day on which these regulations are published in the Gazette;

(b) the rest of the regulations — on the day after that day.

3. Terms used

In these regulations —

analyst includes —

(a) a person certified by the Chief Executive Officer of the Chemistry Centre (WA) as being competent to determine the concentration of alcohol in bodily substances; and

(b) a person approved by the chief executive officer under regulation 8;

approved person means a person approved by the chief executive officer under regulation 6;

approved sample collector means a person approved to collect samples of breath, oral fluid and urine under regulation 7;

authorised person, in relation to breath testing and analysis, means a person authorised by the chief executive officer to operate breath analysing equipment;

breath analysing equipment means apparatus of a type approved by the chief executive officer for the purpose of ascertaining a person’s blood alcohol content by analysis of a sample of the person’s breath;

confirmed adverse test result for alcohol means —

(a) for a prison officer or contract prison officer whose duty involves the use of a firearm, or driving a motor vehicle — analysis of a sample of breath carried out using breath analysing equipment showing presence of alcohol in that person’s blood, following a presumptive positive test result for alcohol;

(b) for any other prison officer or contract prison officer — analysis of a sample of breath carried out using breath analysing equipment showing the concentration of alcohol in that person’s blood to be 0.02 g of alcohol per 100 ml of blood or more, following a presumptive positive test result for alcohol;

confirmed adverse test result for drugs means analysis of a sample of oral fluid, urine or blood carried out by a drugs analyst showing evidence of the presence, or of ingestion, of a drug, following a presumptive positive test result for drugs;

contract prison officer means —

(a) a contract worker authorised to perform a function under section 15I of the Act; and

(b) a contract worker with a permit to do high‑level security work issued under section 15P of the Act;

critical incident means —

(a) the death, or serious injury, of a person, when the death or injury is connected to, or arising from, the application of force by a prison officer or contract prison officer; or

(b) the death, or serious injury, of a person when the death or injury is connected to, or arising from, the exercise of authority by a prison officer or contract prison officer; or

(c) the death, or serious injury, of a person when the death or injury is connected to, or arising from, the driving of a motor vehicle by a prison officer or contract prison officer; or

(d) the death, or serious injury, of a person when the person is in the custody of a prison officer or contract prison officer; or

(e) the discharge of a firearm by a prison officer or contract prison officer, whether or not injury is caused,

when that prison officer or contract prison officer is acting in their capacity as a prison officer or contract prison officer;

drug includes a substance declared to be a targeted drug;

drugs analyst means —

(a) a person certified by the Chief Executive Officer of the Chemistry Centre (WA) as being competent to ascertain whether, and to what extent, drugs are present in bodily substances; or

(b) a person with accreditation from the National Association of Testing Authorities in a field that, in the opinion of the chief executive officer, makes that person competent to ascertain whether, and to what extent, drugs are present in bodily substances;

masking agent includes a substance declared to fall within this definition under regulation 13;

nurse means a person registered under the Health Practitioner Regulation National Law (Western Australia) in the nursing profession;

nurse practitioner means a person registered under the Health Practitioner Regulation National Law (Western Australia) in the nursing profession whose registration under that Law is endorsed as nurse practitioner;

phlebotomist means the holder of a current certificate of competency in phlebotomy, issued by an Australian public hospital or teaching facility;

presumptive positive test result for alcohol means the result of a preliminary test of a sample of breath that shows that the concentration of alcohol in a person’s blood is likely to be 0.02 g of alcohol per 100 ml of blood or more;

presumptive positive test result for drugs means a preliminary analysis of a sample of oral fluid, urine or blood that shows an indication of the presence, or of ingestion, of a drug;

selected prison officer means a prison officer or contract prison officer who is required to undergo an alcohol or drug test, or both, under these regulations;

targeted drug includes —

(a) a drug to which the Misuse of Drugs Act 1981 applies; and

(b) a Schedule 2 poison as defined in the Medicines and Poisons Act 2014 section 3; and

(ca) a Schedule 4 poison as defined in the Medicines and Poisons Act 2014 section 3; and

(d) a drug or substance declared to fall within this definition under regulation 12.

[Regulation 3 amended: Gazette 17 Jan 2017 p. 407; 13 Nov 2018 p. 4434.]

4. Application of these regulations

(1) Subject to subregulation (2), the processes of alcohol or drug testing set out in these regulations are to be carried out on a prison officer or contract prison officer.

(2) The processes of alcohol or drug testing set out in these regulations cannot be carried out on a prison officer or contract prison officer unless that prison officer or contract prison officer is on duty or is recalled to duty for that purpose.

(3) The processes of alcohol or drug testing set out in these regulations should be carried out in a manner that respects a prison officer’s or contract prison officer’s dignity and privacy to the extent possible without compromising the integrity of the testing process.

5. Publication of approved persons

(1) The chief executive officer is to publish the name and relevant details of each person who has been specified by the chief executive officer to be —

(a) an approved person under regulation 6; or

(b) an approved sample collector under regulation 7; or

(2) Publication of the details in subregulation (1) is to be by way of a Departmental intranet website, and is to be for the information of prison officers, contract prison officers and other staff of the Department.

(3) A failure to correctly publish the name or relevant details of a person under subregulation (1) does not affect the status of a person who has been approved, nor does it invalidate any sample collection, testing process or outcome involving that person.

6. Approved persons

(1) The chief executive officer may specify that a particular person is to be an approved person for the purposes of all, or some, of these regulations if the chief executive officer is satisfied that it is necessary for that person to be appointed as an approved person.

(2) The chief executive officer is an approved person as holder of that office.

(3) A person specified as an approved person under subregulation (1) may be a person who is not a member of staff of the Department.

7. Approved sample collectors

(1) The chief executive officer may specify that a person who has undergone training to collect samples of breath, oral fluid or urine in accordance with standards approved under regulation 14(1), is to be an approved sample collector for the purposes of conducting an alcohol or drug test under these regulations.

(2) A person specified as an approved sample collector under subregulation (1) may be a person who is not a member of staff of the Department.

8. Approved analysts

(1) The chief executive officer may specify that a person who is accredited under the National Association of Testing Authorities (NATA) requirements for Chemical Testing and Forensic Science is to be approved as an analyst that is competent to determine the concentration of alcohol in bodily substances under these regulations.

(2) A person specified as an approved analyst under subregulation (1) may be a person who is not a member of staff of the Department.

9. When testing may be carried out: random

(1) An approved person may require a selected prison officer or a number of selected prison officers working within, or visiting, a common work area to submit to an alcohol test or a drug test or both.

(2) An approved person may require all prison officers or contract prison officers working within a common work area, and any visiting prison officer or contract prison officer at the work area at that time, to submit to an alcohol test or a drug test or both.

10. When testing may be carried out: targeted

(1) Targeted testing for alcohol or drugs under these regulations may be carried out if there is credible information, intelligence or suspicion that a selected prison officer may be affected or impaired by alcohol or drugs, while on duty.

(2) Targeted testing for drugs under these regulations may be carried out if there is credible information, intelligence or suspicion that a selected prison officer may have taken or ingested drugs at any time.

(3) The chief executive officer or an approved person may require a particular selected prison officer or a particular group of selected prison officers working within a common work area to submit to an alcohol test or a drug test or both.

11. When testing may be carried out: mandated

(1) The chief executive officer may direct in writing that certain circumstances give rise to compulsory alcohol and drug testing of particular prison officers or contract prison officers.

(2) Circumstances under subregulation (1) may include, but are not limited to —

(a) when a prison officer or contract prison officer is involved in a critical incident; or

(b) where a prison officer or contract prison officer is a participant in a high risk business area within the Department (for example, a drug detection, special operations or emergency response unit); or

(c) when a prison officer or contract prison officer is in the process of completing a critical skills competency course involving weapons; or

(d) where an approved person believes that a test is appropriate for the prison officer’s or contract prison officer’s health and safety, or is prudent to protect the prison officer’s or contract prison officer’s credibility in any future court proceeding; or

(e) when a prison officer or contract prison officer has returned a confirmed adverse test result for alcohol or drugs under these regulations.

(3) Mandated testing may be required —

(a) at the time of the circumstance giving rise to its requirement; or

(b) as an on‑going requirement resulting from the circumstance giving rise to its requirement.

12. Chief executive officer may declare drugs or substances to be targeted drugs

(1) The chief executive officer may declare a drug or substance to be a targeted drug for the purposes of these regulations.

(2) A declaration under subregulation (1) is not effective unless notice of that declaration is published on the publicly accessible Departmental website by the chief executive officer, and a declaration may be amended or revoked by the chief executive officer in a similar manner.

13. Chief executive officer may declare substances to be masking agents

(1) The chief executive officer may declare a substance to be a masking agent for the purposes of these regulations.

14. Chief executive officer may approve collection procedures for alcohol and drug testing

(1) The chief executive officer may approve —

(a) standards or parts of standards; and

(b) collection protocols,

as the manner in which testing processes and procedures are to be carried out.

(2) The chief executive officer may approve items of equipment together with other devices or apparatus for the purpose of testing for targeted drugs.

(3) Notwithstanding the approval of standards, protocols and equipment under this regulation, a minor variation in the manner of collection or analysis of a sample that does not affect the outcome of the testing process may be disregarded when assessing whether the particular testing process was carried out in an approved manner.

Part 2 — Testing for alcohol

15. Requirement to submit sample of breath for preliminary analysis

(1) When requested to provide a sample of breath by an approved person, a selected prison officer must provide a sample, to an authorised person for a preliminary test, in accordance with the directions of that approved person.

(2) Where it appears to the approved person that the physical condition of the selected prison officer is such as to render them incapable of providing a sample of breath for a preliminary test, then the approved person may proceed to the provisions of regulation 17 as if a preliminary test had returned a presumptive positive test result for alcohol.

16. Requirement to confirm identity

(1) A selected prison officer must confirm their identity at the time of providing a sample for alcohol testing by showing —

(a) an original driver’s licence; or

(b) an original passport; or

(d) such other photo‑based identification as may be approved by the chief executive officer for the purpose of this regulation.

(2) It is not sufficient confirmation of identity under subregulation (1) if the selected prison officer is purported to be identified —

(a) by another prison officer or contract prison officer; or

(b) by use of a copied document; or

17. Requirement to submit further sample of breath

(1) Where —

(a) a selected prison officer has provided a sample of their breath for a preliminary test and the preliminary test returns a presumptive positive test result for alcohol; or

(b) the selected prison officer having been so required —

(i) refuses or fails to provide, or appears to be incapable of providing, a sample of their breath for a preliminary test; or

(ii) refuses or fails to provide, or appears to be incapable of providing, a sample of their breath in sufficient quantity to enable a preliminary test to be carried out,

the approved person may require that selected prison officer to provide a further sample of their breath for analysis by an authorised person, under the provisions of subregulation (2) or a sample of blood or urine under regulation 19.

(2) A selected prison officer who is required to supply a sample of breath for analysis must comply with that requirement by providing the sample of breath into breath analysing equipment, for analysis by an authorised person, in accordance with the directions of the approved person.

(3) A selected prison officer is not required under subregulation (1) to provide a sample of breath for analysis if, because of their physical condition, the selected prison officer is incapable of providing the specimen of breath or a specimen of breath in sufficient quantity for analysis.

18. Breath analysis form to be completed

Where a breath analysis is carried out by an authorised person and it returns a confirmed adverse test result for alcohol, the authorised person is to fill out a breath analysis form approved by the chief executive officer.

19. Requirement to submit sample of urine or blood under certain circumstances

(1) Where an approved person might require a selected prison officer to provide a sample of breath for analysis by an authorised person but is precluded from so doing by regulation 17(3), the approved person may require the selected prison officer to provide a sample of blood or urine for analysis.

(2) On taking a sample of blood or urine, the medical practitioner, nurse, nurse practitioner or phlebotomist is to complete the details required by Schedule 1 Form 2.

(3) Where an analyst carries out an analysis of a sample of blood or urine following a presumptive positive test result for alcohol, the analyst is to provide a written result of that analysis to the chief executive officer, whether or not that analysis resulted in a confirmed adverse test result for alcohol.

20. Incapacity to provide sample

(1) If a selected prison officer is unable to provide a sample due to injury or illness, an approved person may request a medical practitioner, nurse, nurse practitioner or phlebotomist to take a sample of blood or urine, or both, from that prison officer or contract prison officer.

(2) A request under subregulation (1) must be a written request made by the approved person completing Schedule 1 Form 1 and handing that completed form to the relevant medical practitioner, nurse, nurse practitioner or phlebotomist.

Part 3 — Testing for drugs

21. Requirement to submit sample for drug testing

(1) When requested to do so, a selected prison officer must provide a sample for drug testing to an approved sample collector (subject to subregulation (4)) in accordance with the directions of an approved person.

(2) An approved person may request a sample of any one or more of the following —

(a) blood;

(b) urine;

(3) An approved person is not required to state what drug the sample will be tested for.

(4) If a sample of blood is required, that sample must be taken by a medical practitioner, a nurse, a nurse practitioner or a phlebotomist.

(5) On taking a sample of blood or urine, the medical practitioner, nurse, nurse practitioner or phlebotomist is to complete the details required by Schedule 1 Form 2.

(6) On taking a sample of urine or oral fluid, the approved sample collector is to complete the details required by Schedule 1 Form 2.

22. Requirement to confirm identity

(1) A selected prison officer must confirm their identity at the time of providing a sample for drug testing by showing —

(a) an original driver’s licence; or

(b) an original passport; or

(d) such other photo‑based identification as may be approved by the chief executive officer for the purpose of this regulation.

(2) It is not sufficient confirmation of identity under subregulation (1) if the selected prison officer is purported to be identified —

(a) by another prison officer or contract prison officer; or

(b) by use of a copied document; or

23. Incapacity to provide sample

24. Opportunity to explain a presumptive positive test result for drugs

(1) Where a selected prison officer has provided a sample for drug testing and the test returns a presumptive positive test result for drugs, that selected prison officer is to be given an opportunity to explain the result prior to a further analysis.

(2) If an explanation is not provided under subregulation (1), an approved person may draw such adverse inferences from the absence of explanation as the circumstances justify.

(3) An explanation given under this regulation is not admissible in evidence against the selected prison officer in any criminal proceedings, but may be used as the basis for a disciplinary offence under regulation 40(5), if the explanation is later found to be false or misleading in a material particular.

25. Requirement to submit further sample for drug testing

(1) Where —

(a) a selected prison officer has provided a sample for drug testing and the test returns a presumptive positive test result for drugs; or

(b) the selected prison officer having been so required refuses or fails to provide, or appears to be incapable of providing, the sample for a drug test,

the approved person may require that selected prison officer to provide a further sample for analysis by a drugs analyst.

(2) A selected prison officer who is required to supply a sample for drug analysis must comply with that requirement by providing the sample for analysis by a drug analyst, in accordance with the directions of the approved person.

26. Drug analyst to report result to chief executive officer

Where a drug analyst carries out an analysis of a sample following a presumptive positive test result for drugs, the analyst is to provide a written result of that analysis to the chief executive officer, whether or not that analysis resulted in a confirmed adverse test result for drugs.

Part 4 — Recall to, and remaining on, duty

Division 1 — Critical incident

27. Remain on duty: alcohol and drug testing

When a prison officer or contract prison officer is involved in a critical incident and their shift is about to finish, an approved person may require that prison officer or contract prison officer to remain on duty until that prison officer or contract prison officer has undergone alcohol testing and drug testing.

28. Recall to duty: drug testing

(1) When a prison officer or contract prison officer is off‑duty but that prison officer or contract prison officer has been involved in a critical incident during the previous shift and has not been the subject of a drug test, that prison officer or contract prison officer may be recalled to duty by an approved person for the purposes of drug testing.

(2) When a prison officer or contract prison officer has been involved in a critical incident while off‑duty and has not been the subject of a drug test, that prison officer or contract prison officer may be recalled to duty by an approved person for the purposes of drug testing.

(3) A selected prison officer cannot be tested under this regulation at their place of residence.

(4) This regulation applies in addition to regulation 29.

29. Recall to duty: alcohol testing

(1) When a prison officer or contract prison officer is off‑duty but that prison officer or contract prison officer has been involved in a critical incident during the previous shift and has not been the subject of an alcohol test, that prison officer or contract prison officer may be recalled to duty by an approved person for the purposes of alcohol testing.

(2) If a prison officer or contract prison officer is involved in a critical incident while off‑duty and has not been the subject of an alcohol test following that incident, that prison officer or contract prison officer may be recalled to duty by an approved person for the purposes of alcohol testing.

Division 2 — Other testing

30. Remain on duty: alcohol and drug testing

When a prison officer or contract prison officer is on duty, or is about to finish their shift, and that prison officer or contract prison officer —

(a) is the subject of credible information, intelligence or suspicion indicating that the prison officer or contract prison officer is affected or impaired by alcohol or that drug use by the prison officer or contract prison officer has taken place while that prison officer or contract prison officer was on duty; or

(b) has been selected to undergo random, mandated or targeted testing for drugs or alcohol, or both,

an approved person may require that prison officer or contract prison officer to remain on duty until that prison officer or contract prison officer has undergone alcohol or drug testing, or both.

31. Recall to duty: drug testing

(1) When a prison officer or contract prison officer is off‑duty but that prison officer or contract prison officer is the subject of credible information, intelligence or suspicion suggesting that drug use by the prison officer or contract prison officer has recently taken place or is taking place, that prison officer or contract prison officer may be recalled to duty by an approved person for the purposes of drug testing.

(2) A selected prison officer cannot be tested under this regulation at their place of residence.

Part 5 — Self reporting

32. Involuntary or accidental alcohol consumption

(1) When a prison officer or contract prison officer is on duty and is concerned that they have accidentally or involuntarily consumed alcohol, that prison officer or contract prison officer may report that possible consumption to a supervisor or the officer in charge and request a preliminary test.

(2) If a self‑requested preliminary test under this regulation returns a presumptive positive test result for alcohol, that prison officer or contract prison officer will be required to submit a further sample of their breath for analysis by an authorised person in accordance with regulation 17.

33. Involuntary or accidental drug ingestion

(1) When a prison officer or contract prison officer is on duty and is concerned that they have accidentally or involuntarily ingested or taken a targeted drug, that prison officer or contract prison officer may report that possible ingestion to a supervisor or the officer in charge and request a drug test to determine if that drug (if known) or a drug (if unknown) has been ingested or taken.

(2) If a self‑requested drug test under this regulation returns a presumptive positive test result for drugs, an analysis of the sample will be conducted by a drug analyst to confirm that outcome.

Part 6 — Adverse test results

34. Adverse testing outcome: alcohol

(1) A selected prison officer returns a positive result to an alcohol test if that prison officer’s or contract prison officer’s preliminary test returns a presumptive positive test result for alcohol and that prison officer or contract prison officer subsequently returns a confirmed adverse test result for alcohol.

(2) A selected prison officer is taken to return a presumptive positive test result for alcohol if the selected prison officer gives 2 or more invalid samples for a preliminary test without a written medical explanation for the invalidity of the samples.

(3) If a selected prison officer is taken to return a presumptive positive test result for alcohol under subregulation (2), an approved person may request that the prison officer or contract prison officer provide a further sample of breath or the approved person may request a medical practitioner, nurse, nurse practitioner or phlebotomist to take a sample of blood or urine, or both, from that prison officer or contract prison officer.

(4) A request for blood or urine under subregulation (3) must be a written request made by the approved person completing Schedule 1 Form 1 and handing that completed form to the relevant medical practitioner, nurse, nurse practitioner or phlebotomist.

(5) If a selected prison officer is required to provide a further sample of breath for analysis by breath analysing equipment under subregulation (3), a positive result to that analysis is a confirmed adverse test result for alcohol for the purposes of these regulations.

(6) A confirmed adverse test result for alcohol is to be recorded by the approved person by completing a form in accordance with regulation 18.

35. Adverse testing outcome: drugs

(1) A selected prison officer returns a positive result to a drug test if —

(a) the preliminary analysis of the prison officer’s or contract prison officer’s sample returns a presumptive positive test result for drugs and that prison officer or contract prison officer subsequently returns a confirmed adverse test result for drugs; or

(b) in the case of a test for testosterone, the preliminary analysis of the prison officer’s or contract prison officer’s sample returns a presumptive positive test result for drugs and that prison officer or contract prison officer subsequently returns a confirmed adverse test result for drugs indicating that the amount of testosterone present in the prison officer’s or contract prison officer’s sample is 4 or more times the amount of epitestosterone present in that sample.

(2) A selected prison officer is taken to return a presumptive positive test result for drugs if the selected prison officer gives 2 or more invalid samples without a written medical explanation for the invalidity of the samples.

36. Independent testing

(1) A selected prison officer who returns a confirmed adverse test result for alcohol (based on a sample other than breath) or a presumptive positive test result for drugs may request, and is to be given on request, a portion of the sample that gave rise to that result.

(2) Independent testing is conducted at the expense of the prison officer or contract prison officer.

37. Consequences of an adverse testing outcome: alcohol

(1) If testing of a selected prison officer returns a confirmed adverse test result for alcohol the chief executive officer may take one or more of the following actions in relation to that prison officer or contract prison officer —

(a) refer the prison officer or contract prison officer to the Department’s employee welfare unit for review;

(b) impose managerial interventions in relation to that prison officer or contract prison officer;

(c) initiate removal action against a prison officer under the Prisons Act 1981 Part X or disciplinary action against a prison officer under the Public Sector Management Act 1994 Part 5 (where applicable);

(d) revoke the permit of a contract prison officer to do high level security work under section 15P of the Act.

(2) Subregulation (1) does not apply to a positive result to an alcohol test conducted under regulation 29 following a recall to duty, unless it is determined that the conduct of the prison officer or contract prison officer was inappropriate in the circumstances.

38. Consequences of an adverse testing outcome: drugs

(1) Subject to subregulation (2), if testing of a selected prison officer returns a confirmed adverse test result for drugs the chief executive officer may take one or more of the following actions in relation to that prison officer or contract prison officer —

(a) refer the prison officer or contract prison officer to the Department’s employee welfare unit for review;

(b) impose managerial interventions in relation to that prison officer or contract prison officer;

(d) revoke the permit of a contract prison officer to do high level security work under section 15P of the Act.

(2) If testing of a prison officer returns a confirmed adverse test result for drugs and the drug found or ingested is —

(a) a drug set out in the Misuse of Drugs Act 1981 Schedule I or II; or

(b) a Schedule 8 poison or a Schedule 9 poison as those terms are defined in Medicines and Poisons Act 2014 section 3; or

(d) a masking agent,

the chief executive officer may accept the resignation of the prison officer, or may take removal action against that prison officer under the Prisons Act 1981 Part X.

(3) Subregulation (2) does not apply if the adverse test result for drugs is to —

(a) a masking agent; or

(b) a Schedule 8 poison as defined in the Medicines and Poisons Act 2014 section 3,

that has been prescribed to that prison officer by a medical practitioner.

[Regulation 38 amended: Gazette 17 Jan 2017 p. 408.]

Part 7 — Other offences

39. Refusal

(1) A prison officer or contract prison officer must comply with a requirement under these regulations to undertake a test for alcohol consumption.

(2) A prison officer or contract prison officer must comply with a requirement under these regulations to undertake a drug test.

(3) A prison officer or contract prison officer must provide a sample of breath for analysis by breath analysing equipment when required to do so under these regulations.

(4) A prison officer or contract prison officer must provide a sample of blood, urine or oral fluid when required to do so under these regulations.

40. Avoidance

(1) If a prison officer or contract prison officer is subject to a requirement under these regulations to —

(a) undertake a test for alcohol consumption; or

(b) undertake a drug test; or

then, unless prevented by urgent medical circumstances, that prison officer or contract prison officer must comply with the requirement prior to ceasing duty.

(2) If a prison officer or contract prison officer is subject to a requirement under these regulations to provide a sample of breath for analysis by breath analysing equipment, that prison officer or contract prison officer must not provide 2 or more invalid samples unless there is a written medical explanation for the invalidity of those samples.

(3) If a prison officer or contract prison officer is subject to a requirement under these regulations to provide a sample of blood, urine or oral fluid, that prison officer or contract prison officer must not provide 2 or more invalid samples unless there is a written medical explanation for the invalidity of those samples.

(4) A prison officer or contract prison officer must not unnecessarily delay a testing or sampling process that is required to be undertaken under these regulations following a critical incident.

(5) A prison officer or contract prison officer must not give an explanation under regulation 24 that they know to be false or misleading in a material particular.

41. Tampering

(1) A prison officer or contract prison officer must not tamper, or interfere with, a testing process carried out under these regulations.

(2) A prison officer or contract prison officer must not, without a lawful reason, be in possession of a masking agent immediately before or during a testing process carried out under these regulations.

(3) A prison officer or contract prison officer must not take a masking agent before a testing process carried out under these regulations.

42. Sanction for offences

(1) A prison officer who does not comply with a provision of this Part commits a breach of their duty and that breach —

(a) may raise a doubt as to a prison officer’s suitability to continue as a prison officer under Part X of the Act; or

(b) may result in disciplinary action against that prison officer under the Public Sector Management Act 1994 Part 5 (where applicable).

(2) A contract prison officer with a permit to do high‑level security work issued under section 15P of the Act who does not comply with a provision of this Part may have their permit revoked by the chief executive officer under section 15U of the Act.

Schedule 1 — Forms

[r. 19, 20, 21, 23 and 34]

Form 1

WESTERN AUSTRALIA

Prisons Act 1981

Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016

Request to take sample of oral fluid, urine or blood

To ..........................................................................................................................

[Name of medical practitioner, nurse, nurse practitioner, phlebotomist]

at ...................................................................................................................

...................................................................................................................

[Name of hospital/medical centre/place]

Under the Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016, I request you, a

...................................................................................................................

[Insert description, e.g. medical practitioner, nurse, nurse practitioner, phlebotomist]

to take —

(a) an oral fluid sample;

(b) a urine sample;

[delete as applicable]

from —

...................................................................................................................

[Name of selected prison officer]

in accordance with the regulations and any standards or collection protocols approved under those regulations.

..................................................................

[Place where request is made]

..................................................................

[Date of request]

..................................................................

[Signature]

Form 2

WESTERN AUSTRALIA

Prisons Act 1981

Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016

Collection of sample of oral fluid, urine or blood

Under the Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016, I, a qualified

...................................................................................................................

[Insert description, e.g. medical practitioner, nurse, nurse practitioner,

phlebotomist, approved sample collector]

took —

(a) an oral fluid sample;

(b) a urine sample;

[delete as applicable]

from ...................................................................................................................

[Name and number of selected prison officer]

at ...................................................................................................................

...................................................................................................................

[Place where sample was taken]

in accordance with the regulations and the standards and collection protocols approved under those regulations.

The sample was taken at .......................................................................................

[Insert time, day, month and year]

The sample, or a portion of that sample, is contained and sealed in the sample

container(s) numbered ..........................................................................................

[Number on sample container(s)]

The equipment used for the purpose of collecting the sample of oral

fluid/urine/blood [delete as applicable] was contained in a packaged serially

numbered .............................. handed to me by .....................................................

[Number on equipment kit] [Name of person handing over the package]

and that package was sealed and intact prior to being opened by me.

In collecting the sample of oral fluid/urine/blood [delete as applicable] I complied with the directions contained within the sealed sample collection package provided.

................................................................

[Signature and qualification]

Witnessed by ................................................................

[Approved person’s signature]

dline

Notes

1 This is a compilation of the Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016 and includes the amendments made by the other written laws referred to in the following table.

Compilation table

Citation	Gazettal	Commencement
Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016	18 Mar 2016 p. 763-97	r. 1 and 2: 18 Mar 2016 (see r. 2(a)); Regulations other than r. 1 and 2: 19 Mar 2016 (see r. 2(b))
Corrective Services Regulations Amendment (Poisons) Regulations 2016 Pt. 2	17 Jan 2017 p. 407‑9	30 Jan 2017 (see r. 2(b) and Gazette 17 Jan 2017 p. 403)
Corrective Services Regulations Amendment Regulations 2018 Pt. 2	13 Nov 2018 p. 4433‑5	1 Dec 2018 (see r. 2(b))

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

analyst 3

approved person 3

approved sample collector 3

authorised person 3

breath analysing equipment 3

confirmed adverse test result for alcohol 3

confirmed adverse test result for drugs 3

contract prison officer 3

critical incident 3

drug 3

drugs analyst 3

masking agent 3

nurse 3

nurse practitioner 3

phlebotomist 3

presumptive positive test result for alcohol 3

presumptive positive test result for drugs 3

selected prison officer 3

targeted drug 3

Western Australia

Prisons Act 1981

Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016

Western Australia

Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016

Contents

Part 1 — Preliminary

Citation 1
Commencement 1
Terms used 1
Application of these regulations 5
Publication of approved persons 5
Approved persons 6
Approved sample collectors 6
Approved analysts 6
When testing may be carried out: random 7
When testing may be carried out: targeted 7
When testing may be carried out: mandated 7
Chief executive officer may declare drugs or substances to be targeted drugs 8
Chief executive officer may declare substances to be masking agents 9
Chief executive officer may approve collection procedures for alcohol and drug testing 9

Part 2 — Testing for alcohol

Requirement to submit sample of breath for preliminary analysis 10
Requirement to confirm identity 10
Requirement to submit further sample of breath 11
Breath analysis form to be completed 11
Requirement to submit sample of urine or blood under certain circumstances 12
Incapacity to provide sample 12

Part 3 — Testing for drugs

Requirement to submit sample for drug testing 13
Requirement to confirm identity 13
Incapacity to provide sample 14
Opportunity to explain a presumptive positive test result for drugs 14
Requirement to submit further sample for drug testing 15
Drug analyst to report result to chief executive officer 15

Part 4 — Recall to, and remaining on, duty

Division 1 — Critical incident

Remain on duty: alcohol and drug testing 16
Recall to duty: drug testing 16
Recall to duty: alcohol testing 16

Division 2 — Other testing

Remain on duty: alcohol and drug testing 17
Recall to duty: drug testing 17

Part 5 — Self reporting

Involuntary or accidental alcohol consumption 19
Involuntary or accidental drug ingestion 19

Part 6 — Adverse test results

Adverse testing outcome: alcohol 20
Adverse testing outcome: drugs 21
Independent testing 21
Consequences of an adverse testing outcome: alcohol 21
Consequences of an adverse testing outcome: drugs 22

Part 7 — Other offences

Refusal 24
Avoidance 24
Tampering 25
Sanction for offences 25

Schedule 1 — Forms

Notes

Compilation table 30

Defined terms

Prisons Act 1981

Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016

Part 1 — Preliminary

1. Citation

	These regulations are the *Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016*.

2. Commencement

These regulations come into operation as follows —

(a) regulations 1 and 2 — on the day on which these regulations are published in the Gazette;

(b) the rest of the regulations — on the day after that day.

3. Terms used

In these regulations —

analyst includes —

(a) a person certified by the Chief Executive Officer of the Chemistry Centre (WA) as being competent to determine the concentration of alcohol in bodily substances; and

(b) a person approved by the chief executive officer under regulation 8;

approved person means a person approved by the chief executive officer under regulation 6;

approved sample collector means a person approved to collect samples of breath, oral fluid and urine under regulation 7;

authorised person, in relation to breath testing and analysis, means a person authorised by the chief executive officer to operate breath analysing equipment;

confirmed adverse test result for alcohol means —

contract prison officer means —

(a) a contract worker authorised to perform a function under section 15I of the Act; and

(b) a contract worker with a permit to do high‑level security work issued under section 15P of the Act;

critical incident means —

(a) the death, or serious injury, of a person, when the death or injury is connected to, or arising from, the application of force by a prison officer or contract prison officer; or

(b) the death, or serious injury, of a person when the death or injury is connected to, or arising from, the exercise of authority by a prison officer or contract prison officer; or

(c) the death, or serious injury, of a person when the death or injury is connected to, or arising from, the driving of a motor vehicle by a prison officer or contract prison officer; or

(d) the death, or serious injury, of a person when the person is in the custody of a prison officer or contract prison officer; or

(e) the discharge of a firearm by a prison officer or contract prison officer, whether or not injury is caused,

when that prison officer or contract prison officer is acting in their capacity as a prison officer or contract prison officer;

drug includes a substance declared to be a targeted drug;

drugs analyst means —

(a) a person certified by the Chief Executive Officer of the Chemistry Centre (WA) as being competent to ascertain whether, and to what extent, drugs are present in bodily substances; or

masking agent includes a substance declared to fall within this definition under regulation 13;

nurse means a person registered under the Health Practitioner Regulation National Law (Western Australia) in the nursing profession;

phlebotomist means the holder of a current certificate of competency in phlebotomy, issued by an Australian public hospital or teaching facility;

presumptive positive test result for drugs means a preliminary analysis of a sample of oral fluid, urine or blood that shows an indication of the presence, or of ingestion, of a drug;

selected prison officer means a prison officer or contract prison officer who is required to undergo an alcohol or drug test, or both, under these regulations;

targeted drug includes —

(a) a drug to which the Misuse of Drugs Act 1981 applies; and

(b) a Schedule 2 poison as defined in the Medicines and Poisons Act 2014 section 3; and

(ca) a Schedule 4 poison as defined in the Medicines and Poisons Act 2014 section 3; and

(d) a drug or substance declared to fall within this definition under regulation 12.

[Regulation 3 amended: Gazette 17 Jan 2017 p. 407; 13 Nov 2018 p. 4434.]

4. Application of these regulations

(1) Subject to subregulation (2), the processes of alcohol or drug testing set out in these regulations are to be carried out on a prison officer or contract prison officer.

5. Publication of approved persons

(1) The chief executive officer is to publish the name and relevant details of each person who has been specified by the chief executive officer to be —

(a) an approved person under regulation 6; or

(b) an approved sample collector under regulation 7; or

6. Approved persons

(2) The chief executive officer is an approved person as holder of that office.

(3) A person specified as an approved person under subregulation (1) may be a person who is not a member of staff of the Department.

7. Approved sample collectors

(2) A person specified as an approved sample collector under subregulation (1) may be a person who is not a member of staff of the Department.

8. Approved analysts

(2) A person specified as an approved analyst under subregulation (1) may be a person who is not a member of staff of the Department.

9. When testing may be carried out: random

10. When testing may be carried out: targeted

11. When testing may be carried out: mandated

(1) The chief executive officer may direct in writing that certain circumstances give rise to compulsory alcohol and drug testing of particular prison officers or contract prison officers.

(2) Circumstances under subregulation (1) may include, but are not limited to —

(a) when a prison officer or contract prison officer is involved in a critical incident; or

(c) when a prison officer or contract prison officer is in the process of completing a critical skills competency course involving weapons; or

(e) when a prison officer or contract prison officer has returned a confirmed adverse test result for alcohol or drugs under these regulations.

(3) Mandated testing may be required —

(a) at the time of the circumstance giving rise to its requirement; or

(b) as an on‑going requirement resulting from the circumstance giving rise to its requirement.

12. Chief executive officer may declare drugs or substances to be targeted drugs

(1) The chief executive officer may declare a drug or substance to be a targeted drug for the purposes of these regulations.

13. Chief executive officer may declare substances to be masking agents

(1) The chief executive officer may declare a substance to be a masking agent for the purposes of these regulations.

14. Chief executive officer may approve collection procedures for alcohol and drug testing

(1) The chief executive officer may approve —

(a) standards or parts of standards; and

(b) collection protocols,

as the manner in which testing processes and procedures are to be carried out.

(2) The chief executive officer may approve items of equipment together with other devices or apparatus for the purpose of testing for targeted drugs.

Part 2 — Testing for alcohol

15. Requirement to submit sample of breath for preliminary analysis

(2) Where it appears to the approved person that the physica

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